{\rtf1{\fonttbl
{\f2 Calibri;}
{\f3 Calibri Bold;}
{\f4 Calibri Italic;}
{\f1000000 Times New Roman;}
}{\colortbl;
\red0\green0\blue0;
\red0\green0\blue0;
\red0\green0\blue0;
}\viewkind1\viewscale100\margl0\margr0\margt0\margb0\deftab80\dntblnsbdb\expshrtn\paperw12240\paperh15840\pard\sb0\sl-240{\bkmkstart Pg1}{\bkmkend Pg1}\par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb108\sl-276\slmult0 \up0 \expndtw-4\charscalex100 \ul0\nosupersub\cf1\f2\fs24 "New Jersey Supreme Court Issues Latest 'Investigatory Stop' Ruling" \par\pard\ql \li1441\ri1476\sb47\sl-588\slmult0\fi720 \up0 \expndtw-2\charscalex100 On December 13, 2012, the Supreme Court of New Jersey determined whether the \up0 \expndtw-2\charscalex100 investigatory stop of Don C. Shaw was constitutional under the Fourth Amendment of the \line \up0 \expndtw-2\charscalex100 United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution; and, if it \up0 \expndtw-3\charscalex100 was not, whether discovery of an outstanding parole warrant for Mr. Shaw\u8217?s arrest would be \up0 \expndtw-2\charscalex100 sufficient intervening circumstance that would break the causal chain between the unlawful \up0 \expndtw-3\charscalex100 detention and the subsequent search. \par\pard\ql \li1441\sb250\sl-276\slmult0 \up0 \expndtw-6\charscalex100 \ul0\nosupersub\cf2\f3\fs24 FACTS: \par\pard\ql \li2161\sb0\sl-276\slmult0 \par\pard\ql\li2161\sb28\sl-276\slmult0 \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf1\f2\fs24 The State presented testimony establishing that on the evening of June 11, 2008, two \par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb48\sl-276\slmult0 \up0 \expndtw-3\charscalex100 teams of law enforcement officers in Atlantic City were participating in Operation Falcon. \par\pard\ql \li1441\ri1203\sb48\sl-586\slmult0 \up0 \expndtw-3\charscalex100 Operation Falcon was a nationwide initiative conducted by the United States Marshals Service in \line \up0 \expndtw-3\charscalex100 conjunction with federal, state and local law enforcement in a concerted effort to execute \line \up0 \expndtw-3\charscalex100 outstanding arrest warrants and apprehend fugitives. On the night in question, Detective Steve \line \up0 \expndtw-3\charscalex100 Brown of the New Jersey State Police and several other officers, approached an apartment \line \up0 \expndtw-2\charscalex100 building in search of an individual who was the subject of an outstanding arrest warrant. The \line \up0 \expndtw-2\charscalex100 officers knew his name, but did not have his picture or any description, other than that he was a \line \up0 \expndtw-3\charscalex100 black male. \par\pard\ql \li1441\ri1345\sb0\sl-586\slmult0\fi720 \up0 \expndtw-2\charscalex100 Detective Brown approached the front of the apartment building and saw two men, \line \up0 \expndtw-3\charscalex100 later identified as defendant and Niam Gardner, exit together from the common doorway. As \line \up0 \expndtw-3\charscalex100 soon as defendant and Gardner saw police, the two men separated and went in two different \line \up0 \expndtw-3\charscalex100 direction[s]. Brown approached Mr. Shaw and asked him for his name, but Mr. Shaw refused to \par\pard\sect\sectd\fs24\paperw12240\paperh15840\pard\sb0\sl-240{\bkmkstart Pg2}{\bkmkend Pg2}\par\pard\ql \li1441\sb0\sl-586\slmult0 \par\pard\ql\li1441\ri1247\sb370\sl-586\slmult0 \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf1\f2\fs24 give Detective Brow his name. Detective Brown told defendant he was not free to leave. Brown \up0 \expndtw-3\charscalex100 later testified that he had decided to detain defendant until another team arrived. \line \up0 \expndtw-3\charscalex100 After what Brown described as a couple of minutes later, other officers arrived and immediately \up0 \expndtw-3\charscalex100 recognized defendant and Gardner, announcing \u8220?that's Don Shaw." Parole officer D'Amico \line \up0 \expndtw-3\charscalex100 immediately stated that Mr. Shaw was wanted by us [Division of Parole]." \line \up0 \expndtw-3\charscalex100 Detective Brown then arrested defendant on the outstanding parole warrant, handcuffed him, \up0 \expndtw-3\charscalex100 and conducted a search of defendant's person incident to the arrest. The search revealed two \line \up0 \expndtw-2\charscalex100 "bricks" of heroin, packaged in 649 individually-wrapped baggies that had been placed in a \line \up0 \expndtw-3\charscalex100 plastic grocery store bag. Brown later learned that the fugitive for whom he and the others \line \up0 \expndtw-4\charscalex100 were searching was someone other than defendant. \par\pard\ql \li1441\sb251\sl-276\slmult0 \up0 \expndtw-5\charscalex100 \ul0\nosupersub\cf2\f3\fs24 CASE HISTORY\ul0\nosupersub\cf1\f2\fs24 : \par\pard\ql \li1441\ri1272\sb48\sl-586\slmult0\fi720 \up0 \expndtw-2\charscalex100 Don Shaw was charged with possession of a controlled dangerous substance among \line \up0 \expndtw-3\charscalex100 other charges. Mr. Shaw moved to suppress evidence of the drugs. The trial court found that \line \up0 \expndtw-3\charscalex100 Mr. Shaw had been unreasonably stopped in violation of the Fourth Amendment. However, \line \up0 \expndtw-2\charscalex100 apply the attenuation doctrine set for in \ul0\nosupersub\cf3\f4\fs24 Brown v. Illinois, 422, U.S. 590\ul0\nosupersub\cf1\f2\fs24 \ul0\nosupersub\cf3\f4\fs24 (1975)\ul0\nosupersub\cf1\f2\fs24 , the court \line \up0 \expndtw-2\charscalex100 declined to suppress the drugs, concluding that the taint from the illegal detention was \line \up0 \expndtw-3\charscalex100 dissipated due to the parole warrant because the warrant stood as an independent basis for \line \up0 \expndtw-3\charscalex100 arresting and searching Mr. Shaw. The New Jersey Appellate Court concurred that Mr. Shaw \line \up0 \expndtw-3\charscalex100 was unlawfully detained, but found that the presence of the warrant did not remove the taint \line \up0 \expndtw-3\charscalex100 from the unconstitutional stop and, therefore invoked the exclusionary rule and suppressed the \line \up0 \expndtw-4\charscalex100 drugs. \par\pard\sect\sectd\fs24\paperw12240\paperh15840\pard\sb0\sl-240{\bkmkstart Pg3}{\bkmkend Pg3}\par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb108\sl-276\slmult0 \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf2\f3\fs24 HOLDING AND DISCUSSION: \par\pard\ql \li2161\sb0\sl-276\slmult0 \par\pard\ql\li2161\sb28\sl-276\slmult0 \up0 \expndtw-2\charscalex100 \ul0\nosupersub\cf1\f2\fs24 The New Jersey Supreme Court granted certification and held that the police did not \par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb48\sl-276\slmult0 \up0 \expndtw-2\charscalex100 have a reasonable, articulable suspicion of criminal activity to justify the investigatory \par\pard\qj \li1441\ri1305\sb45\sl-590\slmult0 \up0 \expndtw-2\charscalex100 detention, which was based on nothing more than a non-particularized racial description of the \up0 \expndtw-2\charscalex100 person sought. Furthermore, the Court held that the parole warrant was not an intervening \up0 \expndtw-2\charscalex100 circumstance that sufficiently purged the taint from the unlawful detention. \par\pard\ql \li1441\ri1315\sb0\sl-585\slmult0\fi720 \up0 \expndtw-2\charscalex100 Specifically, the Court noted that the essence of the Fourth Amendment is that police \line \up0 \expndtw-3\charscalex100 may not stop and/or detain someone without particularized suspicion. In the case at bar, a \line \up0 \expndtw-3\charscalex100 warrantless stop, the State must show that there is an established exception to the warrant \line \up0 \expndtw-2\charscalex100 requirement. Law enforcement may approach a person in a public arena and ask if he is willing \line \up0 \expndtw-3\charscalex100 to answer questions, but the person need not answer, and his refusal does not, without more, \line \up0 \expndtw-2\charscalex100 provide reasonable grounds for the police officer to detain him. A minimally intrusive field \line \up0 \expndtw-3\charscalex100 inquiry becomes an investigative stop or detention, a seizure under the Fourth Amendment, \line \up0 \expndtw-3\charscalex100 when a reasonable person believes that he or she is not free to leave. An investigatory stop is \line \up0 \expndtw-2\charscalex100 permissible if it is based on specific and articulable facts which, combined with rational \line \up0 \expndtw-3\charscalex100 inferences from those facts, give rise to a reasonable suspicion of criminal activity. Law \line \up0 \expndtw-2\charscalex100 enforcement hunches or subjective good faith, even if correct in the end, cannot justify an \line \up0 \expndtw-3\charscalex100 investigatory stop or detention. \par\pard\ql \li1441\ri1546\sb0\sl-586\slmult0\fi720 \up0 \expndtw-2\charscalex100 In the instant case, Don Shaw walked out of an apartment building just as Detective \line \up0 \expndtw-3\charscalex100 Brown arrived to execute an arrest warrant. Mr. Shaw being a black male was the only \line \up0 \expndtw-3\charscalex100 descriptive feature he shared with the fugitive sought. As the trial court found, Mr. Shaw did \line \up0 \expndtw-3\charscalex100 not act in any way that would support articulable suspicion that he was engaged in criminal \par\pard\sect\sectd\fs24\paperw12240\paperh15840\pard\sb0\sl-240{\bkmkstart Pg4}{\bkmkend Pg4}\par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb108\sl-276\slmult0 \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf1\f2\fs24 activity. Law enforcement was allowed to question Shaw, but he had no legal obligation to \par\pard\qj \li1441\ri1278\sb48\sl-586\slmult0 \up0 \expndtw-3\charscalex100 answer. Yet, his failure to respond or identify himself was the basis for his detention. He was \up0 \expndtw-2\charscalex100 not free to leave and was held against his will by police. Because the officers did not possess a \up0 \expndtw-2\charscalex100 reasonable and articulable suspicion to justify the detention, it violated the Fourth Amendment \up0 \expndtw-3\charscalex100 and the State Constitution. \par\pard\ql \li1441\ri1199\sb15\sl-585\slmult0\fi720 \up0 \expndtw-3\charscalex100 The exclusionary rule generally bars the State from introducing into evidence the \u8220?fruits\u8221? \line \up0 \expndtw-2\charscalex100 of an unconstitutional search or seizure. The purposes of the rule are to deter police \line \up0 \expndtw-2\charscalex100 misconduct and to uphold judicial integrity. Under what is known as the attenuation doctrine, \line \up0 \expndtw-2\charscalex100 the exclusionary rule may be set aside if the connection between the police misconduct and the \line \up0 \expndtw-2\charscalex100 secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct. In \line \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf3\f4\fs24 Brown v. Illinois\ul0\nosupersub\cf1\f2\fs24 , the Court created a three prong test for determining whether the attenuation \line \up0 \expndtw-2\charscalex100 doctrine applies: (1) the temporal proximity between the illegal conduct and the challenged \line \up0 \expndtw-2\charscalex100 evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of \line \up0 \expndtw-3\charscalex100 the official misconduct. \par\pard\ql \li2161\sb251\sl-276\slmult0 \up0 \expndtw-2\charscalex100 The Court focused on prongs two and three for their analysis. The second prong is the \par\pard\qj \li1441\ri1197\sb69\sl-585\slmult0 \up0 \expndtw-3\charscalex100 presence of intervening circumstances, the parole warrant. Whether a warrant is determined to \line \up0 \expndtw-3\charscalex100 be an intervening event in an attenuation analysis depends on that case\u8217?s particular set of facts. \line \up0 \expndtw-3\charscalex100 Intervening circumstances and flagrancy factors can become intertwined, as in this case where \line \up0 \expndtw-3\charscalex100 officers initiated the stop and detention to determine if Mr. Shaw was wanted on a particular \line \up0 \expndtw-4\charscalex100 arrest warrant. \par\pard\ql \li2161\sb251\sl-276\slmult0 \up0 \expndtw-3\charscalex100 The third prong, \u8220?purpose and flagrancy of the official misconduct,\u8221? proved most \par\pard\ql \li1441\sb0\sl-276\slmult0 \par\pard\ql\li1441\sb28\sl-276\slmult0 \up0 \expndtw-2\charscalex100 burdensome against the State and is determinative in the Court\u8217?s analysis in this case. The only \par\pard\sect\sectd\fs24\paperw12240\paperh15840\pard\sb0\sl-240{\bkmkstart Pg5}{\bkmkend Pg5}\par\pard\ql \li1441\sb0\sl-585\slmult0 \par\pard\ql\li1441\ri1223\sb372\sl-585\slmult0 \up0 \expndtw-3\charscalex100 \ul0\nosupersub\cf1\f2\fs24 distinct features that Mr. Shaw shared with the fugitive being sought by law enforcement were \line \up0 \expndtw-3\charscalex100 their skin color. Detective Brown was even prepared to take Mr. Shaw in for fingerprinting to \line \up0 \expndtw-2\charscalex100 determine his identification. The right of freedom of movement without unreasonable \line \up0 \expndtw-3\charscalex100 interference by government officials is not debatable at this point in our constitutional \line \up0 \expndtw-2\charscalex100 development. The Court further stated that \u8220?random detention of an individual for the purpose \line \up0 \expndtw-2\charscalex100 of running a warrant check, or determining whether the person is wanted on a particular \line \up0 \expndtw-3\charscalex100 warrant, contradicts the values that inhere in the Fourth Amendment.\u8221? A random stop based \line \up0 \expndtw-2\charscalex100 on nothing more than a non-particularized racial description of the person sought is especially \line \up0 \expndtw-3\charscalex100 subject to abuse. \par\pard\ql \li2161\sb271\sl-276\slmult0 \up0 \expndtw-3\charscalex100 The Court concluded that, in the circumstances of the instant case, the parole warrant \par\pard\qj \li1441\ri1219\sb47\sl-588\slmult0 \up0 \expndtw-3\charscalex100 was not an intervening event that sufficiently purged the taint from the unlawful detention. Mr. \line \up0 \expndtw-3\charscalex100 Shaw was detained to determine if he was named in an arrest warrant and ultimately arrested \line \up0 \expndtw-2\charscalex100 because he was the subject of a warrant, albeit a different one than the warrant triggering the \line \up0 \expndtw-3\charscalex100 stop. The Court applied the exclusionary rule not only for Mr. Shaw but also because of every \line \up0 \expndtw-3\charscalex100 individual\u8217?s right to be free from random stops. The Court suppressed the evidence, because \line \up0 \expndtw-3\charscalex100 \u8220?(this) sends the strongest possible message that constitutional misconduct will not be \par\pard\ql \li1441\sb250\sl-276\slmult0 \up0 \expndtw-6\charscalex100 tolerated.\u8221? \par\pard\sect\sectd\fs24}